The Empty Dock

Süddeutsche Zeitung, 19 January 2009

By Wolfgang Kaleck

A delicate job for Obama: the judicial refurbishment of the Bush era. When President Bush resigns from office he will not only pass on internal and external politicl problems to his successor but also a delicate legal legacy.

Now that President Bush has been elected out of office, he will pass on a multitude of internal and external political problems to his successor as well as a delicate legal legacy. During the recent election campaigns Barack Obama addressed his position concerning the possible criminal prosecution of those responsible for the torture of suspected terrorists within the Bush administration. In April 2008, Obama asserted that his justice minister would examine whether the actions of the Bush government were just foolish politics or whether they should be criminally investigated. In his latest television interview with ABC, he expressed his determination to look ahead and not behind when it comes to issues of national security, also confirming that nobody should be regarded as above the law.

Obama’s comments reinforce the broad public debate that we have reached a turning point: this is the first time in the history of the US that legal allegations have been made against a former president and his government about the political use of torture and whether individuals should be prosecuted for their actions. This is a remarkable milestone. The history of International Criminal Law begins with the post-WW II Nuremberg trials when Robert Jackson, chief prosecutor, delivered his opening statement in November 1945. He argued that "we are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law." Throughout the post war period, crimes against humanity were blatantly committed, yet the criminal prosecution of those responsible was never executed, if even considered at all. Furthermore, this accusation is also true for members of the Allies that sat in the Nuremberg court. Many were affiliated with crimes in the Algerian War, the Vietnam War, and the “dirty wars” in Central and South America during the 70’s and 80’s, all of which were refurbished only to a very limited extent.

At the end of the 20th century, however, the air became thin for rulers engaged in political killings and torture with the establishment of the UN Criminal Tribunals for Rwanda and Yugoslavia. Later, the National/International Criminal Tribunals for Sierra Leone and Cambodia as well as the International Criminal Court in The Hague began developing the international prosecution of international crimes. Despite these developments, it is still difficult to say that all people are treated equally. So far, it has only been delinquents from weak states that have been prosecuted. In order to prevent this arbitrariness several human rights organizations have advocated the idea of `universal jurisdiction` and even initiated national criminal proceedings in some European states, such as the spectacular Pinochet proceedings.

Efforts like these have led to more than 50 investigative procedures in Spain, Belgium, France, the Netherlands, United Kingdom and Germany.- They include investigations about crimes committed in Latin America (Argentina, Chile, Guatemala), Israel (massacre of Sabra and Shatila), China, USA, Russia, Yugoslavia and some African states. The convictions, however, remain low in number and are yet to involve members from powerful states. Right from the beginning, the Bush government made it very clear that it will not submit to international criminal law and withdrew from the Rome Statute for the International Criminal Court, which Clinton had signed before. In addition, Vice President Dick Cheney, along with some of his top legal advisers Addington, John Yoo and others, used the 9/11 attacks to implement their theory of unlimited competences of the president in times of war.

As a result, entire groups of people that were targeted as “terrorists” or “hostile combatants” were denied access to civil or human rights protection, such as the cases of Guantanamo Bay, Abu Ghraib and the CIA extraordinary rendition flights. Official investigations were conducted by politicians (e.g. former Foreign Minister of Defense James Schlesinger), the military (e.g. the Fay/Jones report; Taguba report). Later, the Report of the Congress by McCain and Levin proved that systematic torture was practiced during Bush's term of office and individually charged Dick Cheney and Donald Rumsfeld of the National Security Cabinet.

After investigative reports and vivid photographs of torture at Abu Ghraib were published to the public, some civil rights groups in the US advocated the idea of establishing committees of inquiry in Congress. Others have tried to hold politicians accountable in civil proceedings but failed. Consequentially in November 2004 the Centre for Constitutional Rights (CCR), which represented Guantanamo prisoners with 500 lawyers, pressed charges using German international criminal law against Rumsfeld and others in defense of German Abu Ghraib victims.

Many doubted the success of these proceedings. Both Rumsfeld and representatives of the Pentagon strongly denied these allegations by diplomatic means. Rumsfeld threatened not to enter Germany until the proceedings against him ceased. Concerns soon arose whether German criminal lawyers should participate in cases against members of a friendly Western state. The description of facts and their legal evaluations, however, were never criticized.

In February 2005, the German Federal Prosecutor’s Office avoided making their decision clear by concluding that there was no reason to believe that the US administration and courts would fail to conduct criminal sanctions in these cases. In 2005 and 2006, with the self-prescribed amnesty of the “Military Commissions Act,” it became apparent that political and military leaders would remain unpunished for their human rights violations. As a result, another criminal complaint was registered with the support of NGOs worldwide. The German Federal Prosecutor’s Office again rejected the complaint, now contesting in a pending appeal at the Higher Regional Court of Frankfurt. There is ongoing discussion about the enforcement of International Criminal Law against such powerful adversaries.

The principle of universal jurisdiction allows states to prosecute war criminals regardless of the location of the crime. In fact, the idea to start international proceedings against Rumsfeld in Germany because of the political impossibility of prosecution in the US was based on this principle. Currently, American lawyers and civil rights defenders are back to discussing the question of whom and how to best investigate and punish the acts against human rights violations within the Bush administration. While many think that certain committees and commissions aimed at truth and reconciliation are the only politically possible options, many active supporters, including economist and Nobel Prize winner Paul Krugmann, demand criminal sanctions. Yet it is still uncertain which of these approaches will prevail. The future not only depends on the newly elected Obama; it also depends on whether the US society will be able to reconcile national security with human rights. This problem cannot be reduced to asking whether Bush and Rumsfeld will be in the dock one day.

Despite political obstacles inside Europe, the investigation and sanctioning of crimes committed during the fight against terrorism is taking place. There are detailed reports produced by the European Council.  In Italy, absent CIA agents are on trial, accused of being involved in the abduction of suspects to third countries like Afghanistan and Egypt. Warrants have been issued for their arrest. Other extensive investigations exist on the CIA abduction flights in Spain and the CIA secret prisons in Poland.

Obama and his government must react to their involvement in these upcoming trials, which may even initiate once the suspects enter into a European state. Additionally, there is the question of compensation for victims of human rights violations that must be resolved. The new government will have to adopt a stance on the ongoing compensation proceedings against members of the former administration and private security companies. International human rights organizations will work on all political and legal levels to defend the absolute prohibition of torture.

Author and attorney Wolfgang Kaleck is the General Secretary of the European Centre for Constitutional and Human Rights (ECCHR) in Berlin. In cooperation with the Centre of Constitutional Rights (CCR) in New York in 2004 and 2006, Kaleck pressed charges in Germany against former Minister of Defense Donald Rumsfeld, former Chief of CIA George Tenet and other government and military members of the US for their perpetration of war crimes and torture.

© Süddeutsche Zeitung GmbH, München

Translated by Lena Gruhn and Dustin Miller. Originally published in the German daily Süddeutsche Zeitung from 19.01.2009

Go back